Litigation
The appeal in the Deutsche v. Cheyne litigation (we summarise the first instance decision below) is likely to be heard in May. The first half of the year should also see the trial of claims by the Bank of St Petersburg against Vitaly Arkhangelsky, said to be worth £30 million. The trial of claims by Property Alliance Group against RBS, which include allegations relating to LIBOR manipulation, will begin in May. The Libyan Investment Authority's claim against Goldman Sachs for undue influence in respect of investments made by the sovereign wealth fund is to come to trial in June, as is the trial of a claim brought by Terra Firma against Citi. It is likely that judgment will be handed down in these claims in the second half of 2016. Leave to appeal was granted in relation to one of the more significant judgments of 2014, between UBS, KWL and Depfa, but that appeal is not due to be heard until late 2016 or early 2017, which is indicative of our understanding of the Court of Appeal's current workload.
Regulatory and other developments
The first half of 2016 will see the SMR, and parts of the certification and conduct rules, rolled out. It will be interesting to see how this process goes, and what rules are finally made in relation to those areas where HM Treasury or the regulators have announced a change in approach. Key among those areas are the new duty of responsibility, the final rules in relation to regulatory references, new conduct rules for non-executive directors, and the scope of the certification regime. Both regulators have already begun to address changes to the reporting requirements in relation to breaches of the conduct rules.
Some form of clarification by the regulators as to the UK position regarding the application of proportionality to the CRD4 remuneration principles is expected following the EBA's publication of remuneration guidelines.
The FCA has appealed its loss in the Macris case to the Supreme Court in November 2015, and the outcome of that appeal (while it may not be known in early 2016) is likely to have a significant effect. First, the success of Mr Macris has led a number of other individuals to make similar referrals of FCA final notices. Second, if the Court of Appeal's reasoning stands, it may have implications for the FCA's future conduct of investigations.
A judicial review by Holmcroft in relation to KPMG's role as a skilled person is to be heard in June.
Finally, there remains some uncertainty in relation to the FCA itself. Its decision not to proceed with a review in relation to banking culture (which seems reasonable in view of the many changes that are still to be implemented in that regard), is seen by many as symptomatic of a wider question as to its future approach to regulation.
To read the complete Financial Markets Disputes and Regulatory Update - Winter 2015/Spring 2016, click here.
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